Gizzi v. Hall

• Decision Date: 30 October 2003
• Citation: 309 A.D.2d 1140,767 N.Y.S.2d 469
• Parties: JOSEPH GIZZI et al., Respondents,<BR>v.<BR>DAVID E. HALL et al., Doing Business as HALL DESIGN BUILDERS, Appellants.
• Court: New York Supreme Court — Appellate Division

309 A.D.2d 1140

767 N.Y.S.2d 469

JOSEPH GIZZI et al., Respondents,

v.DAVID E. HALL et al., Doing Business as HALL DESIGN BUILDERS, Appellants.

Kane, J.

Decided October 30, 2003.

Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur.

Kane, J.

In connection with a contract for plaintiffs to purchase a residence constructed by defendants, the parties executed a note and purchase money mortgage for $130,000 payable at 7% interest per annum over a 10-year term. The note contained an acceleration clause providing that the whole sum would become due and payable at defendants' option if any installment was not paid within 30 days of its due date. In April 2000, plaintiffs commenced this lawsuit. Defendants answered and asserted counterclaims to collect amounts past due under the note, for counsel fees for defending their rights under the note, and for immediate payment of outstanding principal and interest. Defendants moved for, among other things, summary judgment on their counterclaims. This Court modified Supreme Court's order partially denying the motion by, among other things, granting defendants' motion for summary judgment on their counterclaims, ordering monthly installments to be paid by plaintiffs to the court until resolution of the entire case, and remitting the matter (300 AD2d 879 [2002]). Shortly after this Court's decision, defendants moved in Supreme Court for a judgment awarding them the sum of all future mortgage payments, including unpaid principal and all future interest amounts, plus statutory interest. Supreme Court partially denied the motion, indicating that it was bound by this Court's decision. Defendants appeal.

We now clarify our prior decision. Although Supreme Court properly read our decision to state that defendants' counterclaim sought foreclosure, the parties agree, and our review of the record substantiates, that defendants actually sought to enforce their rights under the note, not to foreclose on the mortgage.^[1] The holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must only elect one of these alternate remedies (see New York Trap Rock Corp. v Ussher, 271 AD2d 842, 843-844 [2000]; First Natl. Bank & Trust Co. of Walton v Eisenrod, 263 App Div 227, 228 [1942]; see also RPAPL 1301). Defendants elected the legal remedy and chose not to pursue foreclosure. While the parties should have moved to reargue if they believed that this Court's prior decision misinterpreted the facts, we will not force a foreclosure sale that was never requested nor desired by any party.

Defendants were permitted, and there was nothing inconsistent with their request, to seek past due payments up until acceleration along with acceleration of the remainder of the principal due. As noted in our prior decision, plaintiffs admitted that they stopped making mortgage payments. Defendants are entitled to payments due from the time of plaintiffs' last payment in March 2000 until the time that defendants exercised the acceleration option by asserting it in their counterclaim on May 8, 2000.^[2] Late charges may be collected under the note for each such late payment (see Green Point Sav. Bank v Varana, 236 AD2d 443, 443 [1997]). Interest should be calculated on each owed payment from its due date until the date of acceleration at the note and mortgage interest rate of 7%, and from acceleration until judgment at the statutory rate of 9% (see Heimbinder v Berkovitz, 263 AD2d 466, 467 [1999], lv denied 94 NY2d 755 [1999]; Kaiser v Fishman, 187 AD2d 623, 628 [1992], lv denied 81 NY2d 711 [1993]).

Acceleration entitles defendants to all of the mortgage principal still owed as of the date the acceleration option was exercised, not the total of all scheduled mortgage payments from that date throughout the remaining term of the mortgage. The latter alternative, requested by defendants, would create an inequitable situation where a mortgage holder would collect unearned interest on future mortgage payments plus statutory interest on that interest. Instead, interest should be calculated on the accelerated principal from the acceleration date to the date of judgment at the statutory rate of 9% (see Real Property Law § 254 [2]; Metropolitan Sav. Bank v Tuttle, 290 NY 497, 500 [1943]; Heimbinder v Berkovitz, supr...